Kings arena subsidy foes sue city to get measure back on ballot

Insisting voters should get their say, the groups fighting the proposed $258 million public subsidy for a new Sacramento Kings arena sued the city Wednesday to overturn the city clerk’s decision to disqualify their proposed June ballot measure.

Sacramento Taxpayers Opposed to Pork (STOP) and Voters for a Fair Arena Deal filed suit in Sacramento Superior Court, arguing that their signed petitions achieved “substantial compliance” with election laws.

“The city should not stand in the way of democracy,” said STOP co-founder Jim Cathcart at a press conference outside the downtown courthouse.

City Clerk Shirley Concolino disqualified the ballot measure last week on grounds that the petitions signed by 22,938 city voters contained substantial administrative and technical flaws. City officials have expressed confidence that Concolino’s decision would be upheld if challenged in court.

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“We believe the significant legal shortcomings presented by the STOP petitions will be persuasive to a judge,” City Attorney James Sanchez said. “We believe a judge will be hard-pressed to conclude they complied with election code.”

However, a confidential memo circulated by city attorneys two weeks before Concolino made her ruling shows that top officials have been cautioned that a judge could rule to place the measure on the ballot despite the petition flaws.

In a confidential Jan. 10 memo to top city officials, obtained by The Bee, assistant City Attorney Matthew Ruyak wrote, “We cannot conclude with the requisite level of confidence that a court would more likely uphold an action to disqualify the initiative or its signatures.”

“(G)iven the fundamental right of the electorate to assert their voice through initiative we cannot definitively conclude that there is a greater than 50 percent chance of prevailing in court should the City Council refuse to place the measure on the ballot,” Ruyak wrote.

Ruyak stopped short of declaring that the city would lose its case and said city attorneys would serve as “zealous advocates” to defend the decision. The attorney said “there are several possible legal shortcomings in the STOP measure and the petition process.” Some “are stronger than others,” he said.

The memo was drafted to provide a legal analysis for the City Council in the event that Concolino determined the STOP petitions qualified for the ballot. Concolino did not make her ruling based on the memo. Sanchez said he could not address the confidential memo, citing attorney-client privilege.

Two experts on California election law, who reviewed the lawsuit at The Bee’s request, said they think a judge would be inclined to uphold the clerk’s decision to reject the petitions.

But the experts said the case could also go the other way.

“A lot of this comes down to who the judge is,” said Jessica Levinson of Loyola University Law School in Los Angeles. She added, “The more problems (there are), the more a judge is going to be inclined to say the signatures shouldn’t qualify.”

Rick Hasen, of the UC Irvine School of Law, said the sheer volume of drafting errors in STOP’s petitions would appear to bolster the city’s case.

“Looking at it cumulatively, I think (subsidy opponents) face an uphill road,” Hasen said. “The courts do excuse technical errors sometimes. Here you have an accumulation of things that look like more than just minor variance.”

Concolino cited what she said were significant legal shortcomings with the petitions. Among the notable problems, the clerk said the petitions did not include an enacting clause making it clear the initiative would become law if passed by voters; that the proponents of the ballot measure failed to include their names and signatures when they published their intention to circulate petitions in a newspaper; and that nine different versions of the petitions were filed with elections officials.

Brad Hertz, attorney for STOP and Voters for a Fair Arena Deal, acknowledged that STOP and the Voters group made multiple errors in how they worded their petitions and supporting documents, but said the errors were minor.

“It was a lot of very enthusiastic people with, you might say, too many cooks in the kitchen,” Hertz said. “All of (the flaws) are minor, technical. No voters were deceived.”

Hertz said he expects a preliminary hearing on the lawsuit as early as next week, with a “substantive” hearing on the issues coming in mid- to late-February. He said the petitions must be certified by March 7 in order to qualify for the June ballot, which is the opponents’ goal. If passed, the measure would require a public vote before the city could subsidize sports facilities. It would necessitate a second ballot measure on the arena deal itself.

Craig Powell, a co-founder of the Voters group, wouldn’t say who is financing the lawsuit. But he said the funders are “the same sort of folks” who have contributed already to STOP and his group.

The Western Electrical Contractors Association – angered that the arena would be built with union labor – and agribusiness tycoon Chris Rufer were among the heaviest donors to the petition effort. STOP also received a secret $100,000 donation last summer from Chris Hansen, the hedge fund manager who tried to move the Kings to Seattle. STOP said it didn’t know Hansen was the source of those funds, and Hansen was fined for violating California campaign disclosure laws.

Rufer said he has donated money to fund the lawsuit, but wouldn’t say how much. The lawsuit seeks payment by the city of the legal expenses of STOP and Voters for a Fair Arena Deal should they prevail in court.

Joshua Wood of The4000, a political action committee backed by Mayor Kevin Johnson and the Kings, issued a statement Wednesday demanding that subsidy opponents reveal the names of the lawsuit donors.

Johnson has said the new arena would revive downtown Sacramento and create hundreds of jobs. The Kings plan to contribute $190 million to the $448 million arena and spend several hundred million dollars more on ancillary development near the facility, including a hotel, office towers, 550 residential units and retail space.

Critics charge that the public subsidy is too generous and poses a financial risk to the city.

In April, the City Council is expected formally approve spending $258 million on the arena, most of it from bonds backed by future downtown parking revenue.